This past Friday, Mayer Brown partner Ori Lev and co-counsel from the Southern Poverty Law Center argued before the Ninth Circuit in support of affirmance of a preliminary injunction that protects asylum seekers who had previously been “metered” – or told to wait in Mexico before they could even make a claim for asylum in the United States.  The preliminary injunction prevents the Trump Administration from applying a 2019 regulation requiring asylum seekers to have first applied for asylum in countries through which they traveled on their way to the United States to those individuals who were “metered” before the regulation was issued.  Mayer Brown is co-counsel with the Southern Poverty Law Center, the American Immigration Council, and the Center for Constitutional Rights in the case, which challenges the Trump Administration’s metering policy.  Law360 covered the argument and its take on the court’s perceptions of the merits of the case here.

 

On Sunday, July 19, 2020, a temporary Immigration and Customs Enforcement (ICE) policy allowing employers to conduct remote reviews of I-9 supporting documentation is set to expire. Unless the policy is extended, many employers will once again be required to conduct in-person inspections of new employees’ documentation, raising concerns about employers’ ability to comply with both social distancing guidelines and employment verification requirements. Given the ongoing public health crisis, employers are hopeful that ICE will extend its remote inspection policy again, but in today’s rapidly changing immigration environment, it would be imprudent to assume that DHS will continue its more lenient approach.

For example, just last week, ICE rescinded a temporary policy change that allowed international students on F-1 and M-1 visas to remain in the United States while their universities initiated emergency campus closures and transitioned to online learning. Under the updated policy, international students whose Fall 2020 course load is entirely online would have to depart the United States or risk violating their student visa status. The agency’s decision is already being challenged in court, but there is no guarantee that ICE would not pursue a similarly inflexible policy with respect to I-9 employment verification.

The I-9’s Physical Inspection Requirement

Under existing regulations, US employers are required to verify the identity and employment authorization of all new hires within three business days of the employee’s start date using the Form I-9. This verification requirement includes the physical inspection—in the new employee’s presence—of supporting documentation provided by the employee, such as a passport, green card, or Social Security card.

Due to the COVID-19 outbreak and companies’ abrupt shift to “working from home,” compliance with the physical inspection requirement became infeasible for many employers. In response, ICE adopted a more flexible approach to I-9 inspection, designed to enable employers to protect the health and safety of their workers while also maintaining good-faith compliance with the relevant immigration regulations.

Specifically, on March 20, the Department of Homeland Security (DHS) announced a temporary relaxation of the physical inspection requirement. Under the temporary policy, employers who are operating remotely:

  • Can receive and review employee documentation by video conference, email, or fax.
  • Must keep a record of all new hires for whom the physical inspection requirement has been deferred.
  • Must enter “COVID-19” as the reason for the delay of in-person inspection in Section 2 of each I-9.
  • Must complete physical inspections of all I-9 supporting documentation for remotely onboarded employees within three business days of resuming in-person operations.

This relaxation was initially valid for only 60 days. On May 14, ICE extended the remote inspection policy by 30 days, and on June 16, ICE again extended the remote inspection policy by an additional 30 days. ICE has not yet announced another extension of the policy, which is set to expire on July 19.

 What Does ICE’s Current Flexible Approach Mean for Employers?

Under ICE’s “flexible” approach to I-9 document inspection, all employers must still demonstrate good-faith compliance with the applicable law. However, the type of compliance required may depend on the current state of an employer’s operations.

  • Employers that are not 100% remote are expected to conduct in-person review and verification. ICE has said it may make case-by-case exceptions, but ICE has provided no guidance on what would trigger these exceptions.
  • Employers that are slowly beginning to bring their employees back to the workplace may also be expected to conduct in-person review and verification, as their operations would no longer be considered fully remote. Those employers may also be responsible for completing retroactive in-person inspections of I-9 documentation for any new employees who were onboarded remotely during the workplace closure. These in-person inspections would have to be completed within three business days of reopening, placing a heavy burden on employers at the time when management and staff are returning to work.
  • Employers that continue to operate 100% remotely must still (a) collect, review, and maintain copies of their employees’ I-9 documentation, (b) document all steps taken under the policy to maintain good-faith compliance, and (c) commit to in-person review once their workplace reopens.

What Happens If ICE Ends the Flexible Approach?

The principal impact would be on employers that continue to operate 100% remotely. If ICE allows its flexible approach to I-9 verification to expire without providing further guidance:

  • Employers operating remotely would be required to conduct in-person I-9 review and verification for all new hires, just like employers that are operating in-person and employers that have begun reopening workplaces.
  • Employers operating remotely would also have to conduct in-person I-9 verification for all employees onboarded during the flexibility period, and would have to do so within three business days after the end of the flexibility period.

To plan for a potential end to ICE’s flexibility, employers seeking to comply with both the I-9 verification requirements and social distancing guidelines may wish to designate an “authorized representative” to conduct in-person I-9 verification with new hires, regardless of whether their physical workplace is open or closed. Per DHS:

  • Employers may designate “any person” to act as their agent in conducting I-9 reviews and completing Section 2. By tapping a trusted neighbor or an individual in the employee’s household, the employer could thus comply with the in-person review requirement while also minimizing the risk of disease transmission.
  • Employers who use an authorized representative would then be responsible for any mistakes or infractions committed by the authorized representative.

For some employers, that may be a risk worth taking to avoid the spread of COVID-19. Whether or not ICE allows its temporary relaxation of in-person I-9 verification to expire on July 19, hiring professionals will have to pay increased attention to document collection, review, and maintenance in order to ensure I-9 compliance for all new employees brought on during the COVID-19 pandemic.

The Japanese government will look to begin discussions around mid-July to resume flights for certain qualified business purposes to China, Taiwan, South Korea, Singapore, Malaysia, Brunei, Cambodia, Myanmar, Laos and Mongolia. Further details on the Japanese government’s plans for negotiations are expected to be announced soon. As discussed in our prior post on  our COVID-19 Blog, this is in addition to similar discussions that have already began with Vietnam, Thailand, Australia and New Zealand. In late June, Vietnam allowed entry of approximately 450 business travellers from Japan into the country (subject to PCR testing upon arrival and a 14-day hotel quarantine).

Our COVID-19 Global Travel Navigator provides real-time updates of worldwide travel changes.

Some 70% of the 20,000 employees of US Citizenship & Immigration Services, the agency within Homeland Security that adjudicates visa-related benefits for all foreign workers, could face furloughs starting as early as August 3, 2020, unless Congress provides $1.2 billion in emergency funding. This budget shortfall was caused by a dramatic decrease in the number of petitions filed with the agency due to the pandemic.  USCIS depends on filing fee revenues to fund its operations.

During the last week of June, USCIS provided notice to AFGE, the union representing the agency’s employees, of the critical impact of the revenue gap the self-funded agency.  While the House Appropriations Committee has expressed its support for including some level of funding in the next phase of coronavirus response legislation, the Senate so far has declined to begin those negotiations. If a substantial portion of the $1.2 billion requested is not appropriated before the end of the month of July, some 13,400 fee-based employees will be furloughed, which will significantly impact adjudications, with the possible exception of emergency cases, such as those where children may “age-out” of a particular immigration benefit as a minor child.

Substantial delays in the processing of visa petitions and applications for naturalization will – inevitably – result. This will include delays in the processing of requests for extension of stay and change of status. Notably, we understand that the agency likely will continue to permit the premium processing of nonimmigrant petitions, including H-1Bs and L-1s, for example, as the additional $1,440 fee that the agency receives for those expedited cases is a large source of revenue for the agency.

If major regulatory changes occur, the dramatically reduced agency staff would face further challenges as training and oversight requirements would rise.  As reported in our June 23 blog post, the Trump administration’s recent proclamation freezing issuance of new H-1B, L-1, H-2B, J-1, and accompanying dependent visas also includes mandates for new rules in these and other categories, a rulemaking that is anticipated to occur shortly through immediately-effective Interim Final Rules.

 

Aerial over the University of North Carolina in the Spring

In a media release issued on July 6, 2020, Immigration and Customs Enforcement (“ICE”) announced a rollback of the protections it afforded to foreign students in light of the COVID-19 outbreak. The July 6 release announced that foreign students will no longer be eligible for F-1 visas or to remain in the United States to participate in online-only courses of study. Coming only six weeks before the start of the fall semester, the guidance has raised serious concerns for premier US universities, for which foreign students provide one of the greatest sources of revenue, already leading Harvard and MIT to file suit challenging the sudden reversal in posture only six weeks before the start of the fall semester. Other major universities, accompanied by business groups and a number of state attorneys general, are considering challenges to the new policy.

The policy change is expected to affect an estimated more than 1 million student visa holders in the United States, as well as others presently outside the United States who have been admitted for the fall semester.  Students currently in the United States and planning to attend schools that have elected to offer online-only classes in the fall 2020 semester “must depart the country or take other measures, such as transferring to a school offering in-person instruction to remain in lawful status” per the release.

Continue Reading New ICE Directive Threatens Status of More Than One Million Foreign Students and Prompts Immediate Lawsuit

Beginning on March 17, 2020, the Schengen Member States as well as the four Schengen Associated States (collectively the “Member States”) temporarily restricted all non-essential travel from third countries into the European Union.  These restrictions extended until July 1, 2020, when the EU Council recommended that Member States begin to permit entry from travelers residing in a designated list of third countries.  The United States was not included on this list of permitted countries as the country continues to report the highest number of new COVID-19 cases.

In addition to the EU Recommendation, on July 3, 2020, England relieved travel restrictions for a new list of “travel corridors.”  Effective July 10, 2020, travelers from the list of fifty-nine nations and the fourteen British Overseas Territories will no longer be required to self-isolate upon arrival in England.  Scotland, Wales, and Northern Ireland will announce alterations to travel restrictions in the coming days.

Similar to the EU Recommendation, the United States was omitted from the list of travel corridors.  Travelers from the United States will continue to be required to self-isolate for fourteen days upon arrival in England.

What is the Impact of the EU Recommendation?

The European Union continues to restrict the majority of non-essential travel to Member States by third-country residents, including the United States.  The EU Council’s Recommendation details an initial action plan for a gradual lifting of travel restrictions.  Significantly, the EU Council identified fourteen countries for which any non-essential travel restrictions into Member States should be lifted, including Algeria, Australia, Canada, Georgia, Japan, Montenegro, Morocco, New Zealand, Rwanda, Serbia, South Korea, Thailand, Tunisia, and Uruguay.  China  may be included in the list, pending confirmation of the country’s reciprocity.  The Recommendation is directed at all Member States.  However, Denmark and Ireland will not take part in the collective efforts to lift restrictions.

In consultation with the European Commission and other relevant EU agencies and services, the EU Council crafted the list of countries based on the epidemiological situation in all third countries. Further considerations include whether a country imposed reciprocal travel restrictions and general economic and social considerations for prospective travelers from each third country.  In particular, the EU Council recommends third countries must meet the following criteria prior to lifting non-essential travel restrictions:

  • Close to or below the EU average of new COVID-19 cases over the past fourteen days and per 100,000 inhabitants;
  • The trend of new cases over the same period in comparison to the previous fourteen-day period is stable or decreasing; and
  • The overall response to the COVID-19 pandemic (i.e., testing, surveillance, contact tracing, containment, treatment and reporting, reliability of information, and total average International Health Regulations score).

The EU Council has recommended that residence, rather than nationality, serve as the determining factor in applying travel restrictions.  As such, a national of a restricted country who lives in a non-restricted country would not be restricted from travel to the Members States due to nationality.  For example, if Italy lifts its travel restrictions for travelers from Algeria but not for travelers from Uruguay, a Uruguayan national that resides in Algeria would not be restricted from travel to Italy.  By contrast, an Algerian national who resides in Uruguay would be restricted from travel to Italy.

Will the EU List of Non-Restricted Countries Change?

On a rolling, two-week basis, the EU Council will review and update as necessary the list of countries for which Member States should consider lifting non-essential travel restrictions.  As the recommended list of countries continues to change, each Member State will adjust its restricts to its own travel policy based on the criteria listed above.

Will Ongoing EU Travel Restrictions Remain Consistent Across the European Union?

The EU Council has left implementation of the Recommendation to individual Member States, which means each Member State will enforce its own policy for lifting travel restrictions on the listed countries.  However, Member States will not be permitted to unilaterally lift travel restrictions on countries that have not been included in the June 30 version or any subsequent version of the published list.  Further, the EU Council noted that travel restrictions may be totally or partially lifted or reintroduced for a specific third country given any changes in the criteria listed above.  If a listed country were to see a sudden growth in new cases of COVID-19, a Member State may reintroduce travel restrictions on residents of that country.  Accordingly, decision making will occur rapidly and Member States may lift travel restrictions progressively, which will likely leave an uncoordinated approach to restrictions across the European Union.

Are There Exceptions to the EU Travel Restrictions?

Ongoing travel restrictions will remain in place for all non-essential travel to the EU by third-country residents until each individual Member State lifts the restriction for a given third country.  Where ongoing travel restrictions apply, the EU Council recommends that exemptions apply to:

  • All citizens of the European Union and their family members
  • Long-term residents[1] of the European Union and their family members; and
  • Travelers with an essential function or need.

Member States also will continue to enforce additional safety measures, such as self-isolation, on exempt travelers upon their return from a restricted third country.  The Recommendation allows for these additional measures when those measures are also imposed on the particular Member State’s own nationals.

Who is Impacted by England’s List of Travel Corridors?

England’s list of travel corridors for which the self-isolation rule has been lifted can be found here.  Beginning on July 10, 2020, travelers arriving in England will no longer be required to self-isolate, if they:

  • Are travelling from one of the countries or territories on the travel corridor list; and
  • Have not traveled to a country or territory that is not on the travel corridor list in the past fourteen days.

The UK Department of Transport will continually review international travel conditions, expanding the list of travel corridors and reintroducing travel restrictions as appropriate.

What Does This Mean for Employers?

Multinational companies must monitor the differences in how each EU Member State and the United Kingdom are imposing travel restrictions, particularly in the next several weeks and months.  Employers should be mindful of reciprocal travel restrictions that may be imposed for nationals coming from each EU Member State or the United Kingdom, if such restrictions arise because of reported spikes in COVID-19 cases in a given EU Member State, particularly in the Mediterranean during the summer holidays.  For a heat map of countries which have travel, quarantine or health checks, or visa restrictions and for which travelers are impacted by those restrictions, see our Global Traveler Navigator tool.

If you wish to receive regular updates on the range of the complex issues confronting businesses in the face of the novel coronavirus, please subscribe to our COVID-19 “Special Interest” mailing list.

And for any legal questions related to this pandemic, please contact the authors of this Legal Update or Mayer Brown’s COVID-19 Core Response Team at FW-SIG-COVID-19-Core-Response-Team@mayerbrown.com.

 

[1] Long-term residents include those individuals who have gained long-term resident status in the European Union under the Long-term Residence Directive of 2003.  Generally, individuals may gain long-term resident status after having lived legally in an EU Member State for an uninterrupted period of five years, as well as having a regular source of income, health insurance, and, when required by the EU Member State, complied with integration measures.

On June 22, 2020, President Trump signed Proclamation 10052, suspending four visa categories of substantial importance to US companies—H-1B, L-1, H-2B, and certain J-1 visas—for the rest of the calendar year and laid the groundwork for regulatory changes to transform when and how employers can sponsor foreign workers to work in the United States. For a full discussion of the Proclamation, please see our blog post, Trump Order Suspends Major Visa Categories, Including H-1B and L-1, Through the End of the Calendar Year, With Rulemaking Restrictions to Follow.

As initially issued, the Proclamation applies to any alien who:

(i)    is outside the United States on the effective date of this proclamation [June 24, 2020];

(ii)   does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and

(iii)  does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

On June 29, 2020, the White House issued an amendment to Proclamation 10052, stating:

Section 3(a)(ii) is amended to read as follows:

“(ii)   does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and”

The June 29, 2020 amendment is intended to clarify that the exception implicit in Section 3(a)(ii) of Proclamation 10052, applying to any alien with a nonimmigrant visa on June 24, 2020, applies only to individuals with a valid H, J, or L visa who seek admission to the United States in one of those restricted categories. For example, an individual outside the United States who wishes to enter the United States in H-1B status who had a valid B-2 visa but not a valid H-1B visa is subject to the proclamation and would not be eligible to apply for an H-1B visa.

The Government of India has not yet eased its ban on international flights or consular processing services.  The latest announcement from the Government confirms:

  • All scheduled international commercial passenger services will remain closed until July 15, 2020, with exceptions for select routes for which international flights may be permitted made on a case-by-case basis.
  • All Indian visa services (excluding in-country registration, visa extension and other in-country services) remain suspended until further notice.
  • The government has temporarily permitted the FRROs and FROs to provide certain essential consular services. Consular processed visas, electronic visas (e-visas) or stipulations of stay endorsed on the visas, which are set to expire until July 15, 2020 will be extended on a gratis basis for a period of 30 days from July 15, 2020. To avail of this service, the foreign national in India must make an online application on the e-FRRO portal.
  • Foreign nationals whose visas have expired and who have made an application to exit the country, will be granted an Exit Permit without being subject to any penalty for overstay.

 

The UK government has implemented a new form of compliance audit for Tier 2 sponsors conducted by UKVI as a telephone interview.   The new process will supplement but not replace the established activity of full compliance audits that are carried out by the Sponsor Compliance Network at sponsor premises.

Starting on June 15, the Authorizing Officer listed on the Sponsorship License may have received an email requesting participation in a telephone interview with little advance notice. The UKVI wants to assure themselves that sponsors are aware of and continue to adhere to the following key duties expected of them: the monitoring of employees’ immigration documents and their entitlement to work; that any sponsored worker(s) are undertaking the role for which they were granted permission to be in the UK; adherence to sponsorship duties as defined within the Tier 2 & 5 Sponsor Guidance document; and the obligation to retain records of relevant documents.

The interview should last from 30 – 60 minutes. If sponsors wish to nominate an alternative member of the key personnel noted on the sponsor license to carry out the interview, they may do so.

They may also request that their legal counsel partake in the interview.   

 What can Sponsors do now to prepare?

It is the right time for all employers to review legal right to work processes, company reporting, record keeping, migrant tracking and recruitment procedures to ensure on-going compliance with obligations as a Tier 2 sponsor.  We expect there to be a significant increase in this type of telephone sponsor compliance activity in the coming weeks and months, particularly in advance of the opening of the Tier 2 regime to European nationals wishing to work in the UK following the end of the current post-Brexit transition period. It is therefore vital that all sponsors have in place adequate safeguards and compliance procedures to ensure that their on-going employment and immigration obligations are met.

 

 

Hourglass flow

President Trump signed a proclamation on June 22, 2020, suspending four visa categories of substantial importance to US companies – H-1B, L-1, H-2B, and certain J-1 visas – for the rest of the calendar year, and laid the groundwork for regulatory changes to transform when and how employers can sponsor foreign workers to work in the United States. The executive order does not affect visa holders already in the United States who do not travel abroad, or those who are abroad but have already obtained a visa or other travel document. Additionally, the order extends the provisions of the President’s April 22, 2020, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” which suspended for 60 days the issuance of new immigrant visas to applicants who are outside the United States.

The order also includes a mandate for subsequent rulemaking to address a wide-ranging series of measures including imposition of new recruitment and compliance obligations on employers, development of a revised regulatory scheme for allocation of and eligibility qualification for H-1B visas, and provision of enhanced investigative and exclusionary authority for consular and port officials.

The June 22, 2020, proclamation immediately extends the immigrant visa suspension, while the entry restrictions for H-1B, L-1, H-2B, and J-1 visas will take effect on June 24, 2020 at 12:01 a.m. EDT. Both provisions are effective until December 31, 2020. Continue Reading Trump Order Suspends Major Visa Categories, Including H-1B and L-1, Through the End of the Calendar Year, With Rulemaking Restrictions to Follow